'Good Character' clarifications – Suspended sentence

[Amber]

Following a request to the specialist Good Character team at UKBA nationality I have received the following, confirming what I already thought:

Dear XXXXXXX

I will deal with your enquiry in the order set out in your e-mail.

1. "In calculating the threshold it is the prison sentence that counts, not the time served, and a suspended sentence counts as if it were a prison sentence". Can you please confirm whether or not this is accurate, and that where an applicant has a 6 months suspended sentence s(he) will be subject to a waiting period of 7 years as opposed to 3 years for a non-custodial sentence?

This is correct. A suspended sentence is subject to the same criteria as a sentence of imprisonment. Hence a 6 months suspended sentence will be subject to a waiting period of 7 years at the end of that sentence.

2. Can you confirm whether or not any discretion exists to treat a suspended sentence as a non-custodial sentence for the purpose of 'Good Character'.

There is no discretion to treat suspended sentences as non custodial sentences.

Kind regards

XXXXXXX

[Amber]

Upon receiving this response I have noted some discrepancies in UKBA guide notes and have requested an investigation, I shall update when I receive a response.

[VR]

Amber,

It is fantastic to note that you have taken up something which is ambiguous with the Border Agency.

From my side just to ensure the ambiguity on this is removed, I consulted 3 leading law firms on this subject and the results are

2 out of 3 confirmed that so long as a suspended sentence was not activated it would be treated as non-custodial.

1 pointed out to '' it is not the time spent.....'' bit in the guidance and said they cannot take up the case.

one Of the 2 who confirmed to my kin that he could apply after 3 years in the clear (and it cost him a whack to get this info) is a top 10 firm. I asked him to get this for whatever it was worth rather than loose the amount on fees plus charges.

The definition was ambiguous in the ROA 1974 and since the Amendment 139 of the LASPO is being postponed for administrative reasons while 140 has been sneaked in, many people will find that their suspended sentence of less than a year will be spent.

I personally do not believe that the British system will be so unjust as to change the goal posts and deprive people who otherwise meet all the requirements and leave in a limbo. At the end of the day they need contributing people so that the huge population on benefits can be sustaiined.This is a controversial subject.But I mention it without any prejudice or ulterior motives.

I salute your passion. On one hand they cannot say ROA 1974 will not be applicable or selectively applicable only to specific stages of the immigration journey.

It is a challenge to the supremacy of law. I do not think the average case worker will be as savvy or literate and well informed as yourself to be able to give you a fool proof feedback( Public sector goats bleat at best -kidding).
VR

[VR]

Learned Amber,

Please feel free,Correct me if any of this is wishful thinking. English systems and laws have always set the trend for the rest of the world as far back as time goes..

The confusion about suspended sentences is because of the way sentencing evolved over time.

Originally Suspended sentences were used to make up for the shortage of Jail spaces or overcrowding. And the law that ''Its not the time spent in prison that counts..... applied''.

The Criminal Justice Act 2003 brought about a number of new sentences where mitigation,rehabilitation/restoration work based on the offendors'needs could be tailored to minimize re-offending. That was the birth of community orders, other kinds of sentencing with a damocles sword to emerge was the Suspended sentence order which was used in tandem with the community order to ensure the offendor took part in all the prescribed conditions. If he did not he risked being sent to prison.

In practice they usually make the requirements more rigorous rather than actually send the offendor to prison because of a peculiar situation. A person is on a suspended sentence for an offence say assault, on the 11th month of his 12th month supervision he is caught shoplifting, this is a new offence for which he gets taken to court, whilst it would activate the original sentence, would it result in his imprisonment? I presume in the rarest of rare cases. Am I correct in saying if he was brought before the court, he would have a new sentence imposed for the offence plus the existing requirements further made harder, rather than being sent to prison.

They also called this custody minus, where if the person complied with all the requirements during the operational period, the original sentence was discharged.

Therefore I believe the guidance is right in saying that an imprisonment does not include a suspended sentence unless any part of it got activated.

Interesting to see what you come up with. By the By are you a practising solicitor.Looking at your interest in disseminating knowledge and pursuing stuff, your approach is a breadth of fresh air.
cheers
vr

PS: Also looking at American law, for naturalization if a person is on probation or a suspended sentence they insist on completion before considering the application.

[Amber]

I'm not a practising lawyer I'm a legal academic, you get to delve into the theory behind the law. Suspended sentences are one of policy generally to mitigate some compelling circumstance or where the offender is not a repeat. For example, serious cases that would normally dictate a custodial sentence but for a reason the judge uses his/her discretion. This is often seen when children are involved or the defendant is of otherwise good character. It's the serious nature of the offence which I think the HO is particularly interested in.

The guidance as it stands for naturalisation at the moment treats suspended sentences akin to a custodial sentence. It's difficult to say whether this is disproportionate and on balance it could be suggested that it would depend entirely on the nature on the offence.

[VR]

Amber,

You have done a noble deed by taking up the matter with the Border Agency, else the lack of clarity would have destroyed lives. its like giving a garland to monkeys. Each border agency official would have run riot with his own imagination and meagre intellect.

The migrant journey is a painful one, full of sacrifices,compromises, disappointments, determination and grit.

By selectively commencing sections of the LASPO Act 2012 the Home office has changed the goal posts,violating human rights in the process.

As you say the suspended sentence is used in exceptional/mitigating circumstances for first offences and very rarely they are dished out for sentences exceeding the threshold of 6months.

So in all fairness and in upholding the highest traditions of British justice they should not ''deem'' imprisonment where the requirements are fulfilled and the penalty is discharged at the end of the sentence.

As it is the criminal records system is destroying lives in this country. As you are an academic legal expert, I am sure you are aware of the system in other countries like France.
Best Regards
vr

[Amber]

Amber,

You have done a noble deed by taking up the matter with the Border Agency, else the lack of clarity would have destroyed lives. its like giving a garland to monkeys. Each border agency official would have run riot with his own imagination and meagre intellect.

The migrant journey is a painful one, full of sacrifices,compromises, disappointments, determination and grit.

By selectively commencing sections of the LASPO Act 2012 the Home office has changed the goal posts,violating human rights in the process.

As you say the suspended sentence is used in exceptional/mitigating circumstances for first offences and very rarely they are dished out for sentences exceeding the threshold of 6months.

So in all fairness and in upholding the highest traditions of British justice they should not ''deem'' imprisonment where the requirements are fulfilled and the penalty is discharged at the end of the sentence.

As it is the criminal records system is destroying lives in this country. As you are an academic legal expert, I am sure you are aware of the system in other countries like France.
Best Regards
vr

The French issue the 'Extrait de casier judiciaire' which is basically a certificate of Good Conduct. In France there are 3 types of 'Bulletin' certificates. I believe it is only Bulletin 3 which is generally available to prospective employers and yes, unless suspended sentences are revoked, they are not usually disclosed. However, Bulletin 1 and 2 can be made available to some employers if it is deemed necessary and all criminal record and judicial information can be disclosed. France is by no means perfect.

[VR]

Owe you a big one. Thanks for taking the pain.
cheers
vr

[VR]

Dear Amber,

Normally, how long does it take for them to respond to such information requests?

Any SLA's or timeframe withiin which they should respond?I hope to get the written opinion from an immigration judge that it is non-custodial. sometime next week.

cheers
VR

[Amber]

Dear Amber,

Normally, how long does it take for them to respond to such information requests?

Any SLA's or timeframe withiin which they should respond?I hope to get the written opinion from an immigration judge that it is non-custodial. sometime next week.

cheers
VR

Well there response was swift to say that a suspended sentence will be treated in line with a custodial sentence. I pointed out a discrepancy and they are investigating. Hopefully, within the week. Unfortunately, it doesn't matter what a 'judge' thinks it will up to the nationality caseworkers.

[VR]

Dear Amber,

It is hard to think that the fate of a Naturalization application will depend on the whims or knowledge of a case worker, above any specific guidance on the matter.

It is also unbelievable that a definition for immigration purposes will be used differently for different purposes along the journey.

I should be able to give you some concrete information next week. Whilst it is acceptable that stricter thresholds will be there for naturalization, 3 years for non-custodial whereas for ILR 2 years and so on, the disposal is important.

Fingers crossed. I am not going to sit in judgement until the correct guidance is unearthed. Either the ROA 1974 should be applied or ignored intoto. They cannot change the goal posts by selectively imposing sec 140 of the LASPO 2012 and then postponing Sec 139 due to system changes needed.

This would be a clear case for the European Court of Human Rights and people should be asked to apply and then launch joint action to thwart this injustice.

Now Migration is a tough journey given the sacrifices, market situation everything. Including traffic tickets, cautions etc in the name of tightening immigration rules is a joke and clearly targets the wrong audience.

Nobody can save this country..
VR

[Amber]

Dear Amber,

It is hard to think that the fate of a Naturalization application will depend on the whims or knowledge of a case worker, above any specific guidance on the matter.

It is also unbelievable that a definition for immigration purposes will be used differently for different purposes along the journey.

I should be able to give you some concrete information next week. Whilst it is acceptable that stricter thresholds will be there for naturalization, 3 years for non-custodial whereas for ILR 2 years and so on, the disposal is important.

Fingers crossed. I am not going to sit in judgement until the correct guidance is unearthed. Either the ROA 1974 should be applied or ignored intoto. They cannot change the goal posts by selectively imposing sec 140 of the LASPO 2012 and then postponing Sec 139 due to system changes needed.

This would be a clear case for the European Court of Human Rights and people should be asked to apply and then launch joint action to thwart this injustice.

Now Migration is a tough journey given the sacrifices, market situation everything. Including traffic tickets, cautions etc in the name of tightening immigration rules is a joke and clearly targets the wrong audience.

Nobody can save this country..
VR

Unfortunately, naturalisation is not a right but rather discretionary. There are no rules per se for Good Character merely guidance. Unlike an immigration application, which has rules (although arguably no less ambiguous). The caseworker (senior perhaps) has the final say. Perhaps in some cases a judicial review could be warranted. However, with criminality the 'interest of national security/policy' argument seems to trump most other issues.

[VR]

Dear Amber,

Fully agree. But for crimes of a serious nature that affect public interest. Lets wait and see what comes up.

I shall update you.
cheers
VR

[VR]

Dear Amber,

Check this link..

http://www.justanswer.com/uk-immigratio ... isa-i.html
cheers
vr[/url]

[Amber]

This relates to immigration applications not nationality.

[VR]

http://www.immigrationboards.com/viewtopic.php?t=139784

[VR]

Following a request to the specialist Good Character team at UKBA nationality I have received the following, confirming what I already thought:

Dear XXXXXXX

I will deal with your enquiry in the order set out in your e-mail.

1. "In calculating the threshold it is the prison sentence that counts, not the time served, and a suspended sentence counts as if it were a prison sentence". Can you please confirm whether or not this is accurate, and that where an applicant has a 6 months suspended sentence s(he) will be subject to a waiting period of 7 years as opposed to 3 years for a non-custodial sentence?

This is correct. A suspended sentence is subject to the same criteria as a sentence of imprisonment. Hence a 6 months suspended sentence will be subject to a waiting period of 7 years at the end of that sentence.

2. Can you confirm whether or not any discretion exists to treat a suspended sentence as a non-custodial sentence for the purpose of 'Good Character'.

There is no discretion to treat suspended sentences as non custodial sentences.

Kind regards

XXXXXXX

Dear Amber,

Hope you are well. I was wondering, what this particular case worker who initially responded to your information request with the above wrong information had to say.

Also as a legal academic I wanted your advise on how we percolate the correct information so as to reach as many people as possible quickly.

Immigration rules and requirements keep changing, like the exams and requirements. We do not want people to lose out because wrong information is doing the rounds.

I can tell you for a fact that many leading immigration lawyers are also giving out wrong information which I presume is based on interaction with case workers like this one.

One more question, when they say the guidance will be updated, when is that supposed to happen.

Again kudos for persisting and getting to the bottom of this. You sure are making a difference to a lot of people.
Sincerely
VR

[Amber]

I have asked whether the guidance will be updated when the new forms are released in October for the new language requirement.

[VR]

Dear Amber,

Thanks. Lets hope they update it in time to address the ambiguity and confusion surrounding this.

One more question for you. Is there any email id where we can report immigration violations- I mean which they monitor and will definitely take action rather than not respond?

Cheers
vr

[Amber]

See Report immigration crime or smuggling (click)

[VR]

Dear Amber,

Thank you.
cheers
vr

[VR]

Dear Amber,

In order to put this to bed once and for all could you please post the email/response from the Home office.

Rather than wait for their guidance to be amended people could use this as a reference point and put in their applications.

It will help a lot of people. Even now there is a significant amount of confusion in this matter amongst the legal fraternity. Amazing state of affairs.
Best Regards
VR

[Amber]

Once they email me back regarding implementing the changes I shall post it.

[VR]

Dear Amber,

Just wanted to make sure the friend whose application is in , is not mis-judged or delayed.

Thanks a Million for all the help and patience.
Best Rgds
vr

[Amber]

Following my query of an anomaly I am pleased to inform you that arrangements have been put in place to amend the guidance and the citizenship leaflets regarding suspended sentences. It will be done by October. In the meantime, citizenship caseworkers have been instructed to treat suspended sentences as non custodial sentences, unless activated.